Why Aboriginal Title is a Fee Simple Absolute
19 Pages Posted: 18 Aug 2011 Last revised: 2 Mar 2012
Date Written: February 14, 2012
The Supreme Court’s 1823 decision in Johnson v. M’Intosh is a foundation case in both Indian Law and American Property Law. But the case is one of the most misunderstood decisions in Anglo-American law. Often cited for the propositions of the plenary power of the U.S. Congress over Indian tribes and the uncompensated takings of Indian title lands, the Marshall Court decision actually is better interpreted to recognize that Indian tribes had fee simple absolute to their ancestral lands. This article explains why the "discovery doctrine” should have been interpreted to be a fee simple absolute subject to the federal government’s right of preemption. Had the doctrine laid down by Johnson been properly interpreted, its national and international effects today would have been much less pernicious.
Keywords: Indian law, Property law, discovery doctrine, Marshall Court, legal history
JEL Classification: H82, K11, N51, Q15
Suggested Citation: Suggested Citation